Lesson 4: Legal Independence and the Rule of Law

Topic 2: Judicial Independence

The concept of judicial independence is the cornerstone of our justice system and is necessary to protect the rule of law. As the Right Honourable Brian Dickson, P.C., C.C., former Chief Justice of the Supreme Court of Canada once explained:

“The tradition of law which we share is a living thing, built by lawyers and judges imbued with a love of individual freedom and a dedication to justice for all, according to the law. The legal doctrines that we have inherited constitute not the bare bones of a dead tradition but a vital body of living experience. It is only where the law is interpreted by an independent judiciary with vision, a sense of purpose and a profound sensitivity to society’s values, that the rule of law, and therefore the citizen’s rights and freedoms, are safe.”

Judges Must be Independent of Government

Judicial independence means that judges are free to make decisions without interference or influence from any source, including elected officials such as MLAs or MPs. The state cannot tell a court or judge how to decide a case, nor can it discipline a judge for deciding a case in a particular way.

Judges Must be Impartial

It is the constitutional right of every Canadian to have his or her legal issues decided by a fair and impartial judicial decision-maker.

Judges have a responsibility to listen to both sides of a case and then to make impartial, fair decisions based on the law and on the evidence before them. If a judge felt pressure from the government to decide a case in a particular way, the result would be unfair to anyone with a competing interest in the case. The rights of individual citizens would not be protected.

Furthermore, since the government is frequently one of the parties in matters before a judge, the other parties must be confident that the judge is not influenced by the government. This judicial impartiality exists despite the fact that judges are appointed and paid by the government. All parties must be assured that judges make decisions based on the application of the law to the facts of the case and on no other considerations.

Judges Must be Accountable

Despite their independence, judges are accountable for their decisions. Their decisions can be examined by a higher court — they can be appealed.

Judges are also responsible to the courts. A judge would never refuse to hear a case because of its difficulty or unpopularity. Occasionally, however, a judge must refuse to hear a case because he or she has a connection with one of the parties or some other conflict of interest.

Where the conflict is minor, the judge may disclose the connection to both parties and allow the lawyers in the case to raise any concerns they have with the judge continuing to hear the case. It is important that both parties feel confident that the judge will be impartial. For example, if the case involved the judge’s neighbour, then the neighbour or the judge might feel uncomfortable with the judge hearing the case because they have a relationship outside the courtroom. The other party might also be concerned that the relationship between the judge and the neighbour could, even unintentionally, influence the case. Even the appearance of bias can be important, and may justify disqualifying a judge from hearing a case.